Lawyer should be jailed for contempt, court hears

A Victorian lawyer who was recently ordered by the Court of Appeal to stop practicing until his many appeal matters have been finalised, should be jailed for contempt, a court has heard.

Solicitor David Brian Forster breached a court order put in place in early 2011 prohibiting him from contacting lawyers retained by the legal industry's watchdog, the Legal Services Board, in the board's long-running legal matters against him.

Supreme Court Justice Karin Emerton heard that despite being aware of the order, Mr Forster contacted one of the board's barristers, Dr Kristine Hanscombe, in a manner that was considered intimidatory and intended to cause her to withdraw from the proceedings against him.

He made threats that he was going to make applications and complaints against her to the Legal Services Commissioner in the hope that she would voluntarily disqualify herself from acting as legal counsel against him.

The court order was originally made after Mr Forster, a lawyer of 30 years, stated in a letter to Dr Hanscombe that he was having disturbing thoughts about her.

The 63-year-old admitted to the court that he was aware the order was in place and that sending an email in October constituted a "technical breach". But he said he had since provided several letters of apology for what he described as his "inadvertent error".

"We had no intention of breaching the contempt order," he told Justice Emerton. "We now see that our inadvertent error is a breach and apologise for our mistake ... Mistakes do happen and particularly when a (self-represented) practitioner is under enormous pressure with a huge imbalance of resources."

He argued that because of his three matters before the Court of Appeal, had mediation approaching with the Legal Services Board in addition to seven matters before the Victorian Civil and Administrative Tribunal, he was under "fairly intense pressure", was "stressed" and "overburdened".

The letter was never intended to threatened, he reiterated. He said while he knew the penalty of breaching the order could lead to jail time, he did not believe he should be imprisoned for his mistake.

He said he had just received correspondence from the board's lawyers suggesting he contact them by return letter if he wished to explain his actions, which he believed was an "invitation" to contact them.

But barrister Suresh Senathirajah, for the board, submitted that Mr Forster knew when he wrote the email that he was breaking the law, adding that it could only have been sent to intimidate Dr Hanscombe.

Formerly of Hollows Lawyers, Mr Forster handled 89 of 214 personal injury claims against the Australian government by survivors of one of the nation's worst peace-time disasters, the 1964 collision between the Navy destroyer HMAS Voyager and the aircraft carrier HMAS Melbourne.

Eighty-two men died and several others were injured when the Voyager sailed under the bows of the Melbourne. The Voyager was split in two during a night-time tactical exercise.

Following allegations which included that Mr Forster had misappropriated funds relating to the case, the Legal Services Board refused to renew his practising certificate in September 2010 on the basis that he was no longer fit and proper to continue holding a practising certificate.

He appealed the board’s decision to the Victorian Civil and Administrative Tribunal and lost.

VCAT concluded that he was not fit to practise based on his credibility as a witness, because of the trust account irregularities committed by his law practice and because he had behaved "dishonestly and put his interests ahead of his client".

His behaviour was also deemed "reprehensible and amounts to conduct which falls short of the professional standards expected of a legal practitioner".

His legal firm has been placed into receivership, but considering provisions in the Legal Profession Act state that a person remains entitled to practice until all of their appeal rights have been exhausted, Mr Forster continued working.He still has multiple appeals pending, in addition to having several other matters before VCAT.

Last month he was been ordered to stop practising until his current matters before the Court of Appeal are finalised.